IMAGE  EVALUATION 
TEST  TARGET  (MT-3) 


/. 


& 


^6 


1.0 


I.I 


1^  1^  12.2 
t  134  '""^ 
g-   lis    12.0 


1.8 


IL25  lliu  IIIIII.6 


Photographic 

Sciences 

Corporation 


23  WEST  MAIN  STREET 

WEBSTER,  N.Y.  14580 

(716)872-4:03 


■mimm^smmm 


?-R9»ss*a««^' ""  ■ 


;:<p 


CIHM/ICMH 

Microfiche 

Series. 


CIHM/ICMH 
Collection  de 
microfiches. 


Canadian  Institute  for  Historical  Microreproductions  /  Institut  Canadian  de  microreproductions  historiques 


■  ^t^mm^ 


Technical  and  Bibliographic  Notes/Notes  techniques  et  bibliographiques 


The  Institute  has  attempted  to  obtain  the  best 
original  copy  available  for  filming.  Features  of  this 
copy  which  may  be  bibliographically  unique, 
which  may  alter  any  of  the  images  in  the 
reproduction,  or  which  may  significantly  change 
the  usual  method  of  filming,  are  checked  below. 


L'Institut  a  microfilm^  le  meilleur  exemplaire 
qu'il  lui  a  6t6  possible  de  se  procurer.  Les  details 
de  cet  exemplaire  qui  sont  peut-dtre  uniques  du 
point  de  vue  bibliographique,  qui  peuvent  modifier 
une  image  reproduite,  ou  qui  peuvent  exiger  une 
modification  dans  la  mdthode  normale  de  filmage 
sont  indiqu^s  ci-dessous. 


Coloured  covers/ 
Couverture  de  couleur 


« 


I      I    Covers  damaged/ 


Couverture  endommagde 


□   Coloured  pages/ 
Pages  de  couleur 


Pages  damaged/ 
Pages  endommag6es 


D 


Covers  restored  and/or  laminated/ 
Ccuverture  restaurde  et/ou  pellicul^e 


□    Pages  restored  and/or  laminated/ 
Pages  restaurdes  et/ou  pellicul6es 


I      I    Cover  title  missing/ 


Le  titre  de  couverture  manque 


I      I    Coloured  maps/ 


Cartes  gdographiques  en  couleur 


I      I    Pages  discoloured,  stained  or  foxed/ 


li 


Pages  ddcolordes,  tachet^es  ou  piqu^es 

Pages  detached/ 
Pages  d^tachdes 


D 


Coloured  ink  (i.e.  other  than  blue  or  black)/ 
Encre  de  couleur  (i.e.  autre  que  bleue  ou  noire) 


I      I    Showthrough/ 


Transparence 


□    Coloured  plates  and/or  illustrations/ 
Planches  et/ou  illustrations  en  couleur 


D 


Quality  of  print  varies/ 
Quality  in6gale  de  I'impression 


D 


Bound  with  other  material/ 
Reli6  avec  d'autres  documents 


D 


Includes  supplementary  material/ 
Comprend  du  materiel  suppl^mentaire 


D 


D 


Tight  binding  may  cause  shadows  or  distortion 
along  interior  margin/ 

La  reliure  serr^e  peut  causer  de  I'ombre  ou  de  la 
distortion  le  long  de  la  marge  intdrieure 

Blank  leaves  added  during  restoration  may 
appear  within  the  text.  Whenever  possible,  these 
have  been  emitter'  from  filming/ 
II  se  peut  que  certaines  pages  blanches  ajoutdes 
lors  d'une  restauration  apparaissent  dans  le  texte, 
mais,  lorsque  cela  6tait  possible,  ces  pages  n'ont 
pas  6td  filmdes. 


n 


Only  edition  available/ 
Seule  Edition  disponible 

Pages  wholly  or  partially  obscured  by  errata 
slips,  tissues,  etc.,  have  been  refilmed  to 
ensure  the  best  possible  image/ 
Les  pages  totalement  ou  partiellement 
obscurcies  par  un  feuillet  d'errata,  une  pelure, 
etc.,  ont  6X6  film6es  6  nouveau  de  fagon  6 
obtenir  la  meilleure  image  possible. 


D 


Additional  comments:/ 
Commentaires  suppldmentaires; 


This  item  is  filmed  at  the  reduction  ratio  checked  below/ 

Ce  document  est  film6  au  taux  de  reduction  indiqud  ci-dessous. 


10X 

14X 

18X 

22X 

26X 

SOX 

a 

12X 


16X 


20X 


28X 


32X 


tails 
du 

idifier 
une 
nage 


The  copy  filmed  here  has  been  reproduced  thanks 
to  the  generosity  of: 

Library  of  Congress 
Photoduplication  Service 

The  images  appearing  here  are  the  best  quality 
possible  considering  the  condition  and  legibility 
of  the  original  copy  and  in  keeping  with  the 
filming  contract  specifications. 


Original  copies  in  printed  paper  covers  are  filmed 
beginning  with  the  front  cover  and  ending  on 
the  last  page  with  a  printed  or  illustrated  impres- 
sion, or  the  back  cover  when  appropriate.  All 
other  original  copies  are  filmed  beginning  on  the 
first  page  with  a  printed  or  illustrated  impres- 
sion, and  ending  on  the  last  page  with  a  printed 
or  illustrated  impression. 


The  last  recorded  frame  on  each  microfiche 
shall  contain  the  symbol  ^^  (meaning  "CON- 
TINUED"), or  the  symbol  y  (meaning  "END"), 
whichever  applies. 

Maps,  plates,  charts,  etc.,  may  be  filmed  at 
different  reduction  ratios.  Those  too  large  to  be 
entirely  included  in  one  exposure  are  filmed 
beginning  in  the  upper  left  hand  corner,  left  to 
right  and  top  to  bottom,  as  many  frames  as 
required.  The  following  diagrams  illustrate  the 
method: 


L'exemplaire  filmA  fut  reproduit  grdce  d  la 
gAnArositA  de: 

Library  of  Congress 
Photoduplication  Service 

Les  images  suivantes  ont  6t6  reproduites  avec  le 
plus  grand  soin,  compte  tenu  de  la  condition  et 
de  la  nettetA  de  l'exemplaire  film6,  et  en 
conformity  avec  les  conditions  du  contrat  de 
filmage. 

Les  exemplaires  originaux  dont  la  couverture  en 
papier  est  imprimte  sont  film6s  en  commenqant 
par  le  premier  plat  et  en  terminant  soit  par  la 
dernlAre  page  qui  comporte  une  empreinte 
d'impression  ou  d'illustration,  soit  par  le  second 
plat,  selon  le  cas.  Tous  les  autres  exemplaires 
originaux  sont  filmAs  en  commenpant  par  la 
premiAre  page  qui  comporte  une  empreinte 
d'impression  ou  d'illustration  et  en  terminant  par 
la  dernlAre  page  qui  comporte  une  teile 
empreinte. 

Un  des  symboles  suivants  apparaitra  sur  la 
dernlAre  image  de  cheque  microfiche,  selon  le 
cas:  le  symbole  — ►  signifie  "A  SUIVRE  ",  le 
symbole  V  signifie  "FIN  ". 

Les  cartes,  planches,  tableaux,  etc.,  peuvent  dtre 
filmte  A  des  taux  de  reduction  diffdrents. 
Lorsque  le  document  est  trop  grand  pour  dtre 
reproduit  en  un  seul  clich6,  il  est  film6  d  partir 
de  Tangle  supArieur  gauche,  de  gauche  d  droite, 
et  de  haut  en  bas,  en  prenant  le  nombre 
d'images  nAcessaire.  Les  diagrammes  suivants 
illustrent  la  mAthode. 


rrata 

0 


lielure. 
Id 


□ 


32X 


1 

2 

3 

J 


1 

2 

3 

4 

5 

6 

TWENTY  UNSETTLED  MILES 


IN  THE 


NORTHEAST    BOUNDARY. 


T.     C.     MENDENHALL. 


iH'j: 


1/ 


TWENTY    UNSETTLED   MILES 


IN    THE 


NORTHEAST    BOUNDARY. 


[Pnox  IHB  Bkport  of  the  Council  of  tiik  Amkrican  Antiquauian  Society, 

PnESENTSD  AT  TIIK  ANNUAL.  MEETING  HELD  IN  WORCESTKIt, 
OCTOUBK  21,  1896.] 


I 


^■ 


By    T.    C.    MENDENHALL. 


a 


mummtt,  mm., «.  ii.  i^. 

PRESS    OF    CHARLES    HAMILTON. 
311    Main   Street. 

1897. 

7>vO 


/ 


/ 


%' 


4Q66( 


OF  CON(. , 


w 


TWENTY  UNSETTLED  MILES  IN  THE   NORTHEAST 

BOUNDAUY. 


\ 


Fou  nearly  three  hundred  years,  and  almost  without  cessa- 
tion, there  has  raged  a  conflict  of  jurisdiction  over  territory 
lying  near  to  what  is  known  as  the  Northeast  Boundary  of 
the  United  States.  It  has  been  generally  assumed,  how- 
ever, that  the  Webster- Ashburton  treaty  of  1842,  together 
with  the  Buchanan-Packenham  treaty  of  1846,  settled  all 
outstanding  differences  with  Great  Britain  in  the  matter  of 
boundaries,  and  few  people  are  aware  that  there  is  an 
important  failure  in  these  and  earlier  treaties,  to  describe 
and  define  all  of  the  line  which  extends  from  ocean  to  ocean 
and  fixes  the  sovereignty  of  the  adjacent  territory.  From 
the  mouth  of  the  St.  Croix  River  to  the  ocean  outside 
of  West  Quoddy  Head  is  a  distance  of  about  twenty-one 
miles,  if  the  most  direct  route  through  Lubec  (Channel 
be  taken.  Somewhere,  from  the  middle  of  the  river  at  its 
mouth  to  a  point  in  the  ocean  about  midway  between  the 
island  of  Campobello  and  Grand  Menan,  the  boundary  be- 
tween Maine  and  New  Brunswick  must  go,  and,  infercn- 
tially,  for  about  one  mile  of  this  distance  it  is  t^i  rably  well 
fixed.  But  this  is  only  an  inference  from  ttic  ^||:ene^ally 
accepted  principle  that  where  two  nations  exercise  jurisdic- 
tion on  opposite  sides  of  a  narrow  channel  or  stream  of 
water,  the  boundary  line  must  be  found  somewhere  in  that 
stream.  That  this  has  not  been  a  universally  accepted  prin- 
ciple, however,  will  appear  later.  Throughout  the  remain- 
ing twenty  miles,  the  territory  under  the  jurisdiction  of  the 
United  States  is  separated  from  that  under  thp  dominion  of 


Groat  Britain  by  a  long,  irregularly  ahapcd  estuary,  almost 
every  wljero  more  than  a  mile  in  width  and  over  a  largo  part 
of  its  length  opening  into  Passamaquoddy  Bay  and  other 
extensive  arms  of  the  sea.     This  large  body  of  water,  with 
an  average  depth  of  twonty-Hve  fathoms  and  everywhere 
navigable  for  vessels  of  the  largest  size,  flows  with  the  alter- 
nations of  the  tides,  the  rise  and  fall  of  which  is  here  eight- 
een to  twenty  feet,  now  north,  now  south,  with  a  current  in 
many  places  as  swift  as  five  and  six  miles  per  hour.    Noth- 
ing like  a  distinct  channel  or  ♦•thread  of  stream"  exists,  and 
it  can  in  no  way  be  likened  to  or  regarded  as  a  river.  When 
once  the  mouth  of  the  St.  Croix  is  reached,  the  boundary 
line  is  defined  by  the  treaty  of  1783  to  be  the  middle  of 
that  river,  up  to  its  source,  but  literally,  as  well  as  figura- 
tively, we  are  at  sea  as  to  its  location  from  that  point  to  the 
open  ocean.     It  is  the  purpose  of  this  paper  to  give  some 
account  of  the  circumstances  which  gave  rise  to  such  a 
curious  omission ;  the  incidents  which  led  to  a  diplomatic 
correspondence  and  convention  relating  to  the  matter,  in 
1892,  between  the  two  governments  interested;    and  the 
attempt  which  was  made  during  the  two  or  three  years 
following  the  convention  to  determine  and  mark  the  miss- 
ing boundary. 

The  present  controversy  really  had  its  beginning  nearly 
three  hundred  years  ago.  Up  to  the  end  of  the  16th 
century,  not  much  attention  had  been  given  by  European 
colonists  to  the  northeastern  coast  of  America,  although 
it  had  been  visited  by  Cabot  before  the  beginning  of  that 
century.  The  coapt  was  tolerably  well  known,  however, 
and  it  had  been  explored  to  some  extent  by  both  Eng- 
lish and  French,  who  were  alive  to  the  importance  of 
the  extensive  fishing  and  other  interests  which  it  repre- 
sented In  1603,  the  King  of  France  (Henry  IV.)  made 
the  famous  grant  to  De  Monts  of  all  the  territory  in 
America  between  the  fortieth  and  forty-sixth  degrees  of 
north  latitude,  thus  furnishing  a  beautiful  example  of  the 


definition  of  n  most  uncertain  quantity  in  n  most  certain  and 
exact  manner,  an  example  wliich  later  l)oundary-lino  nialc- 
ors  might  wi8cly  liavo  followed.  The  Atlantic  coast-line 
covered  l>y  (his  extensive  charter,  extends  from  a  point 
considerably  liolow  Long  Island  to  another  point  on  Cape 
Breton  Island  and  includes  all  of  Nova  Scotia.  In  the 
spring  of  1004,  De  Monts  sailed  for  his  now  domain,  to 
which  the  name  Acadia  had  been  given,  carrying  with  him 
Champlain  as  pilot.  After  landing  on  the  southern  coast  of 
what  is  now  known  as  Nova  Scolia,  ho  sailed  around  Cape 
Sable  to  (he  northward,  entered  the  Bay  of  Fundy,  discov- 
ered and  named  the  St.  John  River,  and  afterward  entered 
Passamaquoddy  Bay,  and  ascended  a  large  river  which 
came  into  the  bay  from  the  north.  A  little  distance  above 
its  mouth,  he  found  a  small  island,  near  the  middle  of  the 
stream,  which  at  that  point  is  nearly  a  mile  and  a  half  wide. 
As  this  island  appeared  easy  of  defence  against  (he  natives, 
he  determined  to  make  a  settlement  there,  and  proceeded 
to  the  erection  of  buildings,  fortifications,  etc.  A  few  miles 
above  the  island,  the  river  was  divided  into  two  branches 
nearly  at  right  angles  to  the  main  stream,  and  the  whole  so 
resembled  a  cross,  that  the  name  <*St.  Croix''  was  given 
to  the  new  settlement,  and  the  same  name  came,  afterward, 
to  bo  applied  to  the  river.  The  subsequent  unhapi>y  fate 
of  this  first  attempt  to  plant  the  civilization  of  Europe  upon 
the  northern  coast  of  America  is  so  woll  known  that  further 
reference  is  unnecessary.  This  most  interesting  spot  is 
now  partly  occupied  l)y  the  United  States  Government  as  a 
lighthouse  reservation,  about  one-third  of  the  island  hav- 
ing been  purchased  for  (hat  purpose.  The  St.  Croix  River 
lighthouse,  carrying  a  fixed  white  and  dO-sec.  white  flash- 
light of  the  fifth  order,  now  stands  whore  in  1605  stood 
the  stone  house  and  palisade  of  the  dying  Frenchmen, 
who  found  in  disease  a  worse  enemy  than  the  aborigines. 
The  area  of  the  whole  is  only  a  few  acres,  and  it  has 
apparently  wasted  away  a  good   deal   since  the   French 


I 


\ 


sottlomcnt,  relicH  of  which  are  occasionally  found  even  at 
this  (lay.  Tho  JBhind  has  horno  various  names,  that  first 
given  having  long  since  attached  itself  to  the  river.  On 
modern  Government  charts,  it  is  l<nown  as  Dochet's  Island, 
derived,  doubtless,  from  DoucetV,  one  of  its  early  names, 
hut  it  is,  perhaps,  more  generally  known  as  Neutral  Island. 
The  significance  of  its  discovery  and  settlement  as  affecting 
the  <iue8tion  in  hand,  will  appear  later. 

Very  shortly  after  the  grant  of  the  French  King  in  I (503, 
King  James  of  England  issued  a  charter  to  all  of  tho  terri- 
tory in  Ameriiui  extending  from  the  Atlantic  to  tho  Pacific 
Ocean,  included  between  the  thirty-fourth  and  forty-sixth 
degrees  of  north  latitude,  covering  and  including  the  pre- 
vious grant  of  the  French  King,  and  thus  setting  fairly  in 
motion  tho  game  of  giving  away  lands  without  considera- 
tion of  the  rights  or  even  claims  of  others,  in  which  the 
crowned  heads  of  Euroi)c  delighted  to  indulge  for  a  century 
or  more.    Colonization  was  attempted,  and  now  one  power, 
now  another,  was  in  the  ascendant.     Occasional  treaties  ^ 
in  Europe  arrested  petty  warfare  on  this  side,  and  out  of  it 
all  came  a  general  recognition  of  the  St.  Croix  River  as  the 
boundary  between  the  French  possessions  and  those  of  the 
English.     It  is  impossible  and  would  be  improper  to  go 
into  these  historical  details,  most  of  which  are  so  generally 
known.     It  is  only  important  to  note  that  tho  province 
known  as  Nova  Scotia  by  the  one  nation,  as  Acadia  by  tho 
other,  after  various  vicissitudes  became  the  property  of  tho 
English,  and  that  it  was  assumed  to  be  separated  from  tho 
province  of  Massachusetts   Bay  by  the  river  St.  Croix. 
While    the    latter    province  remained  a  colony,  loyal 
to  the    King,  and   the  former  a  dominion  of  the  Crown, 
there  was  naturally  no  dispute  over  boundary  lines.    In 
the  provisional  peace  treaty  of  1782,  between  the  United 
States  and  Great  Britain,  and  in  the  definitive  treaty  of 
peace  in  1783,  it  is  declared  that  in  order  that  "all  dis- 
putes which  might  arise  in  future,  on  the  subject  of  the 


1)oundar{efl  of  the  said  United  States  may  be  prevented,  it 
'm  hereby  agreed  and  declared  tliat  tlie  following  are  and 
shall  be  their  Imundaries,"  and  in  this  embodiment  of 
peaceful  intent  is  to  l)0  found  the  origin  uf  international 
controversies  which  lusted  more  than  a  half  a  century,  and 
which  were  often  provocative  of  much  bitterness  on  both 
sides.  The  phrase  in  which  reference  is  made  to  the  line 
under  consideration  is  as  follows:  *'East  by  a  line  to  be 
drawn  along  the  middle  of  the  river  St.  Croix,  from  its 
mouth  in  the  Bay  of  Fundy  to  its  source."  During  the 
last  days  of  the  Revolutionary  War  many  who  had  been 
loyal  to  the  King  during  its  continuance  fled  from  the 
Colonies  to  Nova  Scotia,  and  naturally  they  were  not  much 
in  favor  among  those  who  had  risked  all  in  the  founding  of 
a  new  republic.  It  was  believed  by  them  that  the  loyalists 
were  encroaching  on  the  territory  rightfully  belonging  to 
the  province  of  Massachusetts,  and  even  before  the  defini- 
tive treaty  of  peace  had  been  proclaimed.  Congress  had 
been  appealed  to  to  drive  them  away  from  their  settlement 
and  claim  what  was  assumed  to  lie  the  property  of  the 
United  States  of  America.  There  at  once  developed  what 
proved  to  be  one  of  the  most  interesting  controversies  in 
the  history  of  boundary  lines.  It  was  discovered  that 
although  the  St.  Croix  River  had  long  served  as  a  bound- 
ary, **  between  nations  and  individuals,"  its  actual  identity 
was  unknown.  The  treaty  declared  that  the  lino  of  demarc- 
ation between  the  two  countries  should  be  *' drawn  along 
the  middle  of  the  river  St.  Croix  from  its  mouth  in  the  Bay 
of  Fundy,"  but  it  was  found  that  there  were  several  rivers 
debouching  into  this  bay  and  that  several  of  them  had 
been,  at  one  time  or  another,  known  as  the  St.  Croix. 
In  accordance  with  time-honored  diplomatic  practice,  the 
English  were  for  taking  the  most  westerly  of  all  these,  and 
the  Americans  contended  with  much  vigor  and  no  small 
amount  of  justice  that  it  was  the  most  easterly.  The  St. 
John,  a  large  river  emptying  into  the  Bay  of  Fundy,  had 


\ 


8 

been  so  long  and  so  well  known  that  it  was  out  of  the  ques- 
tion. There  remained  three  considerable  streams,  which, 
beginning  with  that  farthest  east,  were  known  as  the 
Magaguadavic,  or  popularly  at  the  present  day,  the  "Mag- 
adavy,"  the  Passamaquoddy  and  the  Cobscook,  all  pouring 
their  waters  into  the  Passamaquoddy  Bay. 

In  the  Grenville-Jay  Treaty  of  1794,  the  settling  of  this 
dispute  is  provided  for  in  an  agreement  to  appoint  three 
commissioners,  one  each  to  be  named   by  the  respective 
governments  and  the  third  to  be  selected  and  agreed  upon 
by  these  two,  whose  duty  it  was  to  "decide  what  river  is 
the  river  St.  Croix  intended  by  the  treaty,"  and  to  declare 
the  same,  with  particulars  as  to  the  latitude  and  longitude 
of  its  mouth  and  its  source,  and   the  decision  of  these 
commissioners  was  to  be  final.     In  a  supplementary  treaty 
of  1798,  this  commission  was  relieved  from  the  duty  of 
determining  latitude  and  longitude,  having,  for  some  reason 
or  other,  found  difficulties  in  the  same,  or,  possibly,  recog- 
nizing the  absurdity  of  defining  a  boundary  in  two  distinct 
and  fndependent  ways.     It  was  not  until  1798  that  the 
commissioners  made  their  report.      As  is  usual,  indeed, 
almost  universal  in  diplomatic  affivirs,  it  represented  a  com- 
promise.     There  seems  to  be  little  doubt  that  the  river 
which  was  called  St.  Croix  at  the  time  of  the  negotiation  of 
the  treaty  of  peace  in  1783  was  really  the  most  easterly 
river  or  the  "Magadavy,"  this  being  the  testimony  of  the 
commissioners,  Adams,  Jay  and  Franklin.      But  at  the 
same  time   it  cannot  be  denied  that  the  stream   finally 
accepted  as  the  St.  Croix  was  the  real  river  of  that  name, 
referred  to  in  the  traditions  and  treaties  of  two  centuries, 
and  the  discovery  of  the  remains  of  the  French  settlement 
on  Dochet's  Island  quieted  all  doubt  in  the  matter.     Eng- 
land gained  a  decided  advantage   by  the  not-unheard-of 
proceeding  of  adhering  to  the  letter  of  the  treaty  rather 
than  to  its  spirit. 

But  the  report  of  the  commission  of  1798  fell  far  short 


I 


IMlBfi 


Eng- 


of  terminating  the  boundary-lino  controversy.     The  iden- 
tity of  the   St.  Croix  Kiver  was   fixed   and    its    mouth 
and  source  determined,  but   from   tiio   beginning   of  tiio 
lino  in  the  middle  of  the  river  there  were  still    twenty 
miles  before   the   open  ocean  was  reached.     Along   this 
stretch  of  almost  land-locked  water  were  numerous  islands, 
several  of  them  largo  and  valuable,  and  on  some  of  them 
important  settlements  had  already  been  made.     The  Com- 
missioners of  1794  were  urged  to  continue  the  lino  to  the 
sea,  thus  settling  the  sovereignty  of  these  islands  and  end- 
ing the  dispute.     They  declined  to  do  so,  however,  on 
account  of  a  lack  of  jurisdiction,  as  they  believed,  and  it 
was  not  then   thought  that  these   subordinate   problems 
would  be  difBcult  of  solution.     As  a  matter  of  fact.  Great 
Britain  claimed   dominion  over  all  of  these   islands   and 
exercised   authority   over  most    of   them,  except   Moose 
Island,   upon   which  was  the  vigorous  American  town   of 
Eastport.     A  treaty  was  actually  arranged  in  1803  between 
Lord  Hawkcsbury  and  Rufus  King  in  which  the  question 
of  the  extension  of  the  boundary  line  to  the  open  sea  was 
n<rreed  upon  and  in  a  most  curious  way.     It  was  declared 
that  the  boundary  line  should  proceed  from  the  mouth  of  the 
St.  Croix  ard  through  the  middle  of  the  channel  between 
Deer  Island  and  Moose  Island  (which  was  thus  held  by  the 
United  States)   and  Campobello    Island  on  the  west  and 
south  round  the  eastern  part  of  Campobello  to  the  Bay  of 
Fundy.     This  would  apparently  give  the  island  of  Campo- 
bello to  the  United  States ;  but  it  was  especially  declared 
that  all  islands  to  the  north  and  east  of  said  boundary,  to- 
gether toith  the  island  of  Campobello,  should  bo  a  part  of 
the  Province  of  New  Brunswick.     The  curious  feature  of 
this  treaty,  providing  that  an  island  actually  included  on 
the  American  side  of  the  boundary  lino  should  remain  in 
tho  possession  of  Great  Britain,  resulted  from  a  provision 
of  the  treaty  of  1783,  which  declared  that  all  islands  here- 
tofore under  the  jurisdiction  of  Nova  Scotia  should  remain 


I 


\ 


.  i 


10 

the  property  of  Great  Britain.  It  is  also  an  admission  of 
the  fact  that  the  natural  extension  of  the  boundary  lino  is 
around  the  eastern  end  of  Cainpobello,  as  described  above ; 
and  while  this  treaty  was  never  ratilied,  it  is  of  great 
significance  as  proving  the  admission  on  the  part  of  the 
English,  that  the  natural  boundary  would  include  the  island 
of  Campobello  in  American  territory. 

During  the  war  of  1812  matters  remained  in  slatu  quo, 
and  Moose  Island  (Eastport)  continued  to  be  regarded  as 
American,  although  Great  Britain  had  yielded  nothing  of 
her  claims.     Finally,  just  as  peace  had  been  declared,  an 
armed  English  force  appeared  before  the  town  and  com- 
pelled its  surrender.     This  was  undoubtedly  to  gain  that 
possession,  which  is  nine  of  the  ten  points,  before  the  meet- 
ing of  the  Commission  at  Ghent ;  and    in  the  discussion 
which  afterward  took   place,   the   British  Commissioners 
claimed  absolute  and  complete  ownership  of  Moose  Island 
and  others  near  by.      T »  this  the  Ar<ericans  would  not 
yield  ;  but  they  finally  gave  way  to  the  extent  of  allowing 
continued  possession  until  commissioners,  to  be  appointed 
under  the  treaty,  could  irvestigato  and  decide  the  question. 
Thus  the  boundary  lino  was    thrown  into  the   hands  of 
another  commission,  which  was  again  unfortunate  in  not  be- 
ing clothed  with  sufficient  power  to  definitely  fix  it.  Indeed, 
the  importance  and  desirability  of  considering  the  extension 
of  the  boundary  line  to  the  sea  does  not  seem  to  have  been 
realized,  the  commissioners  being  restricted  in  their  duties 
to  the  determination  of  the  sovereignty  of  the  several  islands 
in  Passamaquoddy  Bay.     The  report  of  this  commission 
was  made  in  November,  1817.    As  this  decision  has  a  most 
important  bearing  on  the  matter  under  consideration,  it 
will  bo  well  to  quote  its  exact  language.     The  Commission- 
ers agreed  "that  Moose  Island,  Dudley  Island  and  Freder- 
ick Island,  in  the  Bay  of  Passamaquoddy,  which  is  part  of 
the  Bay  of  Fundy,  do  and  each  of  them  does  belong  to  the 
United  States  of  America ;  and  we  have  also  decided,  and 


immmmnir-* 


11 

do  decide,  that  all  other  islands  and  each  and  every  one  of 
them,  in  the  said  Bay  of  Passamaquoddy,  which  is  a  part 
of  the  Bay  of  Fundy,  and  the  Island  of  Grand  Menan  in  the 
said  Bay  of  Fundy,  do  belong  to  his  said  Britannic  Maj- 
esty, in  conformity  with  the  true   intent  of  said   second 
article  of  said  treaty  of  one  thousand  seven  hundred  and 
eighty-three."      A  very   superficial   examination   of    this 
d^ision  reveals  the  possibility  of  a  decided  advantage  to 
Great  Britain  in  consequence  of  its  wording,  an  advantage 
doubtless  foreseen  and  foresought  by  the  more  shrewd  and 
accomplished  diplomatists  by  whom  th^t  nation  was  repre- 
sented in  this  instance,  as  in  almost  every  other  contro- 
versy with  this  country.     Here  is  a  group  of  scores  of 
islands,  lying  in  an  inland  sea,  separating  the  two  countries. 
It  is  true  that  the  sovereignty  of  one  or  two  of  the  most 
important  is  apparently  deterpincd  by  the  treaty  of  1783, 
but  on  this  the  arguments  were  almost  equally  strong  on 
both  sides.     In  any  event  it  would  have  been  easy,  and 
infinitely  better  to  have  drawn  a  line  through  the  Bay, 
from  the  mouth  of  the  river  to  the  open  sea,  and  to  have 
declared  that  all  islands  on  one  side  of  that  line  should 
belong  to  Great  Britain  and  all  on  the  other  side  to  the 
United  States.     Had  this   been   done,  much   subsequent 
dispute  would  have  been  avoided.     With  much  ingenuity, 
however  (as  it  seems  to  me),  the  American  Commission 
was  induced  to  accept  three  islands,  definitely  named  and 
pointed  out,  as  their  share,  while  the  Englishmen,  with 
characteristic  modesty,  contented   themselves  with  every- 
thing  left.      Of  the  sovereignty  of  Moose,  Dudley  and 
Frederick  Islands,  there  was  hardly  room  for  discussion, 
notwithstanding  the  three  or  four  years'  occupancy  of  the 
town  of  Eastport  by  British  troops  after  the  War  of  1812. 
Our  being  worsted  in  the  matter,   as  we  unquestionably 
were,  is  to  be  attributed  to  the  general  indifference  of  the 
great  majority  of  our  people  to  the  future  value  of  outly- 
ing territory,  the  resources  of  which  have  not  yet  been 


I 


\ 


-wm 


sm 


12 


explored.  This  unfortunate  indifference  is  quite  as  general 
today  as  it  was  a  century  ago,  and  is  in  marked  contrast 
with  the  policy  of  our  English  ancestors. 

It  is  important  to  note  that  this  partition  of  the  islands 
in  Passamaquoddy  Bay,  unfair  as  it  unquestionably  was, 
gave  no  definition  of  the  boundary  line  from  the  mouth  of 
the  St.  Croix  to  the  sea,  except  inferentially.  In  the 
absence  of  description  it  must  be  inferred  that  the  bound- 
ary is  to  be  drawn  so  as  to  leave  on  one  side  all  territory 
admitted  to  be  American  and  on  the  other  all  admitted  to 
be  British.  For  a  distance  of  about  a  half  a  mile  the  island 
of  Campobello  lies  so  close  to  the  American  shore  that  a 
channel,  known  as  Lubec  Channel,  not  more  than  a  thous- 
and feet  in  width,  separates  the  two  countries,  and  the 
thread,  or  deepest  axis  of  this  channel  might  well  define 
the  boundary.  For  the  remajning  score  of  miles,  however, 
as  has  already  been  explained,  the  estuary  is  too  wide,  its 
depth  too  great  and  too  uniform  to  afford  any  physical 
delimitation,  except  that  based  on  equal  division  of  water 
areas. 

This  ill-defined,  or  rather  undefined  boundary  line  has 
so  remained  for  nearly  eighty  years.  It  is  true  that  gov- 
ernment chart-makors,  both  English  and  American,  have 
often  indicated  by  dotted  lines  their  own  ideas  as  to  its 
whereabouts,  but  they  have  not  been  consistent,  even  with 
themselves,  except  as  to  making  Lubec  Channel  a  part  of 
it,  and  they  have  had  no  authority  except  that  of  tradition. 
There  has  been  no  small  amount  of  commercial  activity 
among  the  settlements  on  both  sides  of  the  Bay,  and  a  con- 
siderable proportion  of  the  population  have  been,  at  one 
time  or  another,  engaged  in  fishing.  The  customs  laws  of 
both  countries,  and  especially  the  well-established  fisheries 
regulations  of  the  Canadians,  and  the  activity  of  their  fish- 
eries police,  have  led  to  various  assumptions  as  to  the  loca- 
tion of  the  boundary  by  one  of  the  interested  parties  and  to 
more  or  less  tacit  admission  by  the  other.    It  happens  that 


!!!i 


Htmtmm 


■HI 


18 


the  greater  part  of  the  best  fishing-grounds  in  the  immedi- 
ate vicinity  of  the  town  of  Eastport  is  distinctly  within 
Canadian  waters,  so  that  most  of  the  trespassing  has  been 
done  by  the  Americans.  This  has  resulted  in  a  great 
development  of  Canadian  police  activity,  which  necessarily 
implies  assumption  as  to  the  existence  and  whereabouts  of 
the  boundary.  The  continued  readiness  to  claim  that 
American  fishermen  were  trespassers,  accompanied  occa- 
sionally by  actual  arrest  and  confiscation,  naturally  led  to 
a  gradual  pushing  of  the  assumed  boundary  towards  the 
American  side ;  and  there  is  no  doubt  that  during  the  past 
twenty-five  years,  the  people  on  that  side  have  acquiesced 
in  an  interpretation  of  the  original  treaty  which  was  decid- 
edly unfavorable  to  their  own  interests.  On  the  other 
hand,  from  Lubec  Channel  to  the  sea,  through  Quoddy 
Roads,  a  condition  of  things  just  the  reverse  of  this  seems 
to  have  existed.  Here  certain  fishing-rights  and  localities 
have  been  stubbornly  contended  for  and  successfully  held 
by  Americans,  although  the  territory  involved,  is,  to  say 
the  least,  doubtful.  In  the  matter  of  importation  of  duti- 
able foreign  goods  into  the  United  States,  there  existed 
for  many  years  an  easy  liberality  among  the  people  whose 
occupation  at  one  time  was  largely  that  of  smuggling,  for 
which  the  locality  offers  so  many  facilities.  It  is  plain  that 
this  condition  of  things  would  give  rise  to  no  great  anxiety 
about  the  uncertainty  of  the  boundary  line,  although  in  one 
or  two  instances  the  activity  (no  doubt  thought  pernicious) 
of  the  Customs  officers  resulted  in  disputes  as  to  where  the 
jurisdiction  of  one  country  ended  and  that  of  the  other 
began ;  and  in  at  least  one  notable  case,  to  be  referred  to 
at  some  length  later,  this  question  was  adjudicated  upon 
by  the  United  States  courts. 

The  question  was  not  seriously  considered  by  the  two 
governments,  however,  from  the  time  of  the  treaty  of  Ghent 
to  the  year  1892.  It  is  not  an  uncommon  belief  that  this 
part  of  the  boundary  line  was  considered  in  the  famous 


\ 


14 

Webster-Ashburton  Treaty  of  1842;    and    many  people 
have  unjustly  held  Webster  responsible  for  the  continued 
possession  by  Great  Britain  of  the  island  of  Canipobello, 
which,  by  every  rule  of  physiographic  delimitation,  ought  to 
belong  to  the  United  States.     But,  as  already  recited,  the 
sovereignty  of  this  island  was  settled  in  1817,  and  practi- 
cally so  in  the  original  treaty  of  1783.     The  Webstor- 
Ashburton  Treaty  was  apparently  intended  to  settle  the 
last  outstanding  differences  between  Great  Britain  and  the 
United  States  in  the  matter  of  boundary  linos,  but  disputes 
relating  to  them  seem  difficult  to  quiet.     The  treaty  of 
1842  carried  the  line  only  as  far  as  the  Rocky  Mountains, 
and  another  in  184G  was  necessary  for  its  extension  to  the 
Pacific.     Examining  both  of  these  in  the  light  of  today, 
there  can  be  no  doubt  of  the  fact  that  the  United  States 
was  seriously  at  fault  in  yielding,  as  she  did,  her  rightful 
claims  at  both  ends  of  the  great  trans-continental  line. 
Enormous  advantages  would  be  hers  today,  if  she  had  not 
so  yielded ;   and  her  only  excuse  is  that  at  the  time  of 
negotiation  the  territory  involved  did  not  seem  of  material 
value,  at  least  when  compared  with  her  millions  of  acres 
then  undeveloped. 

In  all  of  these  controversies  nothing  was  said  of  the  little 
stretch  of  undefined  boundary  in  Passamaquoddy  Bay,  and 
it  is  quite  probable  that  those  who  had  to  do  with  such 
matters  were  quite  unaware  of  its  existence. 

On  July  16th,  1891,  the  Canadian  cruiser.  Dream,  doing 
police  duty  in  those  waters,  seized  seven  fishing-boats, 
owned  and  operated  by  citizens  of  the  United  States,  while 
they  were  engaged  in  fishing  at  a  point  near  what  is  known 
as  Cochran's  I-edge,  in  Passamaquoddy  Bay,  nearly  oppo- 
site the  city  of  Eastport,  Maine.  It  was  claimed  by 
Canadian  authorities  that  the  crews  of  these  boats  were 
engaged  in  taking  fish  in  Canadian  waters.  On  the  other 
hand,  the  owners  of  the  boats  seized  contended  that  they 
were  well  within  the  jurisdiction  of  the  United  States  at 


'iL 


16 


the  time  of  the  seizure,  and  there  wus  much  interest  in  the 
controversy  which  followed.  The  matter  was  referred 
to  the  Department  of  State,  where  it  became  evident 
that  future  conflict  of  authority  and  jurisdiction  could  be 
avoided  only  by  such  a  marking  of  the  boundary  line 
as  would  make  the  division  of  the  waters  of  the  Bay 
unmistakable. 

Accordingly,  in  Article  II.  of  the  Convention  between  the 
United  States  and  Great  Britain,  concluded  at  Washington, 
on  July  22, 1892,  it  is  agreed  that  each  nation  shall  appoint 
a  Commissioner,  and  that  the  two  shall  "determine  upon 
a  method  of  more  accurately  marking  the  boundary  line 
between  the  two  countries  in  the  waters  of  Passamaquoddy 
Bay  in  front  of  and  adjacent  to  Eastport  in  the  State  of 
Maine,  and  to  place  buoys  and  fix  such  other  boundary 
marks  as  they  may  deem  to  be  necessary."    The  phrasing 
of  this  Convention  furnishes  in  itself,  a  most  excellent  ex- 
ample of  how  a  thing  ought  not  to  be  done.     There  is  no 
doubt  that  a  large  majority  of  the  boundary-line  disputes 
the  world  over,  are  due  to  the  use  of  faulty  descriptions 
involving  hasty  and  ill-considered  phraseology.     We  are 
particularly  liable  to  this  sort  of  thing  in  the  United  States, 
by  reason  of  the  fact  that  most  of  our  diplomatic  affairs  are 
too  often  conducted  by  men  of  little  experience  and  no 
training,  and  who  are  unaccustomed  to  close  criticism  of  the 
possible  interpretation  of  phrases  and  sentences  relating  to 
geographical  subjects.     A  treaty  of  this  kind   is  usually 
satisfactory  to  both  parties  when  entered  into,  and  it  is 
only  at  a  later  period,  when  it  must  be  interpreted,  that  one 
or  the  other  of  them  is  likely  to  find  that  it  is  capable  of  a 
rendering  and  an  application  very  diflTerent  from  what  had 
been  thought  of  at  the  time.    Innumerable  examples  of  this 
looseness  of  language  might  be  given  if  necessary,  but  it  is 
important  to  call  attention  to  the  inherent  weakness  of  the 
document  now  under  consideration.     The  first  phrase,  re- 
quiring the  commissioners  "to  determine  upon  a  method  of 


\ 


16 


more  accurately  marking  the  lioumlary  line"  implies  that  it 
was  already  marked  in  some  unsatisfactory  manner,  and  it 
implies  still  further,  that  such  a  boundary  line  exists, 
neither  of  which  assumptions  is  correct.  As  a  consequence 
of  this  erroneous  hypothesis,  the  description  of  the  part 
of  the  line  to  be  marked,  namely,  that  in  front  of  and 
adjacent  to  Eastport,  is  vague  and  inadequate,  and, 
indeed,  there  is  nowhere  a  hint  of  a  recognition  of  the 
real  facts. 

Under  this  convention,  Hon.  W.  F.  King,  of  Ottawa, 
Canada,  was  appointed  commissioner  on  the  part  of  Great 
Britain,  and  the  writer  of  this  paper  represented  the  United 
States. 

The  commissioners  were  immediately  confronted  with 
the  fact  that  they  were  expected  to  mark  a  boundary  line 
which  really  did  not  exist  and  never  had  existed  ;  but  by  a 
liberal  interpretation  of  that  part  of  the  convention  in  which 
it  was  agreed  that  they  were  "to  place  buoys  or  fix  such 
other  boundary  marks  as  they  may  determine  to  be  neces- 
sary," they  found  a  basis  on  which  to  proceed  to  the  con- 
sideration of  the  question.  Evidently  the  just  and  fair 
principle  according  to  which  the  boundary  might  be  drawn, 
was  that  which,  as  far  as  was  practicable,  left  equal  water- 
areas  on  both  sides.  There  was  no  other  solution  of  the 
problem  clearly  indicated  by  the  physics  of  the  estuary  or 
the  topography  of  the  shores.  Furthermore,  there  is  a 
precedent  for  adopting  this  principle,  in  the  treaty  of  1846, 
in  which  the  extension  of  the  boundary  from  the  point  of 
intersection  of  the  forty-ninth  parallel  of  north  latitude  with 
the  middle*  of  the  channel  between  Vancouver  Island  and 
the  Continent,  to  the  Pacific  Ocean,  is  along  the  middle  of 
the  Strait  of  Fuca.  This  was  agreed  to  by  both  sides ;  and 
also,  that  the  boundary  line  should  consist,  in  the  main,  of 
straight  lines,  because  of  the  impossibility  of  marking  a 
curved  line  on  the  water,  or  indicating  it  clearly  by  shore 
signals ;  that  the  number  of  these  straight  lines  should  be 


..', 


17 

as  small  os  possible,  consistent  with  an  approximately  equal 
division  of  the  water  area.  In  view  of  the  great  desirability 
of  fixing  the  line  for  the  whole  distance,  from  the  mouth  of 
the  St.  Croix  River  to  West  Quoddy  Head,  the  commis- 
sioners tentatively  agreed  to  so  intori)ret  the  words  "adja- 
cent to  Eastport,"  as  to  include  the  entire  twenty  miles, 
thus  hoping  to  definitely  settle  a  controversy  of  a  hundred 
years'  standing.  Proceeding  on  these  principles,  the  whole 
line  was  actually  laid  down  on  a  large  scale  chart  of  the 
region  at  a  meeting  of  the  commission,  in  Washington,  in 
March,  1893,  with  the  exception  of  a  distance  of  a  little 
over  half  a  mile,  extending  north  from  a  point  in  the  middle 
of  Lubec  Channel.  The  omission  of  this  part  in  the  Wash- 
ington agreement  was  due  to  the  existence  of  a  small  island 
al)out  a  quarter  of  a  mile  from  the  entrance  to  the  channel, 
now  known  as  "Pope's  Folly,"  but  early  in  tfie  century 
known  as  "Green"  Island  and  also  as  "Mark"  Island.  The 
sovereignty  of  this  island  hos  been  almost  from  the  begin- 
ning a  matter  of  local  dispute.  It  contains  barely  an  acre  of 
ground,  and  except  for  possible  military  uses,  it  has  practi- 
cally no  value.  Its  location  is  such,  however,  as  to  form  a 
stumbling  block  in  the  way  of  drawing  a  boundary  line, 
which,  if  hiidlHown  with  a  reasonable  regard  to  the  princi- 
ples enunciated  above,  would  certainly  throw  it  on  the  side 
of  the  United  States,  while  a  lino  so  drawu  as  to  include  it 
in  Canadian  waters  would  be  unscientific  and  unnatural. 
It  was  agreed  to  postpone  further  consideration  of  this 
question  until  the  meeting  of  the  commissioners  in  the  field 
for  the  purpose  of  actually  establishing  the  lino,  which 
meeting  occurred  in  July,  1893. 

Nearly  two  months  were  occupied  in  the  surveys  neces- 
sary to  the  establishment  of  the  ranges  agreed  upon  and  in 
the  erection  of  the  shore  signals.  It  was  agreed  that  the 
line  should  bo  marked  by  buoys  at  the  turning-points,  but 
as  the  strong  tidal  currents  which  there  prevail  promised  to 
make  it  difficult,  if  not  impossible,  to  hold  these  in  their 


\ 


18 

places  it  was  dotormined  to  mark  each  straight  segment  of 
the  boundary  by  prominent  and  lasting  range-signals  so  that 
it  could  bo  followed  without  regard  to  the  buoys,  and  cross- 
ranges  were  also  established  by  means  of  which  the  latter 
could  be  easily  replaced  if  carried  away.  Permanent  natu- 
ral objects  were  in  a  few  instances  used  as  range  signals, 
but  for  the  most  part  they  were  stone  monuments,  conical 
in  form,  solidly  built,  from  five  feet  to  fifteen  feet  in  height, 
and  painted  white  whenever  their  visibility  at  long  range 
was  thus  improved.  At  the  close  of  the  work,  first-class 
can-buoys  were  placed  at  the  principal  turning-points,  al- 
though with  little  hope  of  their  remaining  in  place.  As  a 
matter  of  fact,  it  was  found  impossible  to  keep  in  place  more 
than  three  of  the  six  or  seven  put  down,  but,  fortunately, 
these  are  at  the  most  important  points  in  the  line.  As 
already  stated,  the  commissioners  had  failed  to  agree,  in 
Washington,  as  to  the  direction  of  the  line  around  Pope's 
Folly  Island,  and  on  further  investigation  of  the  facts  they 
were  not  drawn  together  on  this  point.  As  the  work  in 
the  field  progressed,  other  important  difterences  developed 
which  finally  prevented  the  full  accomplishment  of  the 
work  for  whicli  the  commission  had  been  appointed.  A 
brief  discussion  of  these  differences  will  properly  form  a 
part  of  this  paper. 

As  to  jurisdiction  over  Pope's  Folly  Island,  the  claim 
of  the  British  Commissioner  is,  at  first  blush,  the  strongest. 
It  rests  upon  the  report  of  the  commissioners  appointed 
under  the  treaty  of  Ghent  for  the  partition  of  the  islands 
in  Passamaquoddy  Bay.  It  will  be  remembered  that  in 
this  report  three,  only,  of  these  islands  were  declared  to 
belong  to  the  United  States,  and  Pope's  Folly  was  not 
one  of  them.  As  all  others  were  to  be  the  property  of 
Great  Britain  it  would  seem  that  the  sovereignty  of  this 
small  island  was  hers  beyond  doubt.  There  is,  however, 
very  distinctly,  another  aspect  of  the  question.  In  the 
first  place,  it  is  highly  probable  the  Commissioners  under 


19 


^ 


the  treaty  of  Ghent  restricted  their  considomtion  nnd 
action  to  those  islanda  tlio  domain  of  wlticli  was  nnd  had 
been  actually  in  dispute.  The  hmguaj^e  of  tlio  treaty  dis- 
tinctly implies  this  ami  the  language  of  the  report  closely 
follows  that  of  the  treaty.  It  is  true  that  reference  is  had 
to  "  the  several  islands  in  the  Hay  of  Passama*] noddy, 
which  is  part  of  the  Bay  of  Fundy,"  r^-.,  hut  it  is  further 
said  that  "said  islands  are  claimed  as  belonging  to  Flis 
Britannic  Majesty,  as  having  been  nt  the  time  of  and  previ- 
ous to  the  aforesaid  treaty  of  one  thousand  seven  hundred 
and  eighty-three,  within  the  limits  of  the  Province  of  Nova 
Scotia";  for  by  that  treaty  all  of  the  important  islands  of 
the  group  would  have  como  to  the  United  States,  had  not 
exception  been  made  of  all  then  or  previously  belonging  to 
this  province.  Obviously,  then,  the  partition  commission- 
ers would  consider  only  those  for  which  such  a  claim  could 
bo  set  up.  There  is  also  good  reason  to  believe  that  the 
island  called  Pope's  Folly  may  not  have  been  considered 
by  the  commission,  on  account  of  its  trifling  importance. 
It  is  a  significant  fact  that  there  are  many  other  small 
islands  in  the  bay,  some  of  them  much  larger  and  more 
important  than  this,  of  which  no  mention  was  made  by  the 
commission,  yet  Great  Britain  has  never  claimed  or  even 
suggested  that  they  wore  rightfully  British  territory. 
Their  sovereignty  was  probably  not  even  thought  of  by  the 
commission.  In  short,  a  literal  interpretation  of  their 
report  is  not  admissible  and  it  has  never  been  so  claimed. 
Its  phraseology  is  another  example  of  hasty  diplomatic 
composition,  into  the  acceptance  of  which  the  Americans 
may  have  been  led  by  their  more  skilful  opponents. 

At  the  time  this  question  was  under  consideration,  the 
region  was  sparsely  settled,  many  of  the  islands  having  no 
inhabitants  at  all;  and  the  whole  dispute  was  thought, 
at  least  on  our  side,  to  bo  a  matter  of  comparative  little 
importance.  It  was  natural,  therefore,  that  in  selecting 
those  islands  which  were  to  belong  to  the  United  States, 


\ 


so 


I 


only  tho  iiio8t  iinporttiiit  would  lio  (liouj^ht  of,  it  hoing 
undorHtood  Ihnt  goograpliictil  rulationsliip  Hliould  detorniino 
jUi'iHdiction  over  tnnny  small  inlands  not  named  and  douht- 
IcsH  not  thought  worthy  of  enumerating  at  that  time.  But 
if  it  could  1)0  uhown  that  tho  iuland  wait  at  the  time  of  tho 
treaty  of  1783,  or  had  been  previously,  n  dependency  of 
tho  Province  of  Nova  b'cotia,  tho  claim  of  tho  British 
Commissioner  tvould  bo  good.  On  this  point  I  believe  tho 
ovidonco  is  entirely  with  uh.  It  goes  to  itiiow  that  so  tar 
as  there  has  lieen  any  private  ownership  of  tho  island  it  hat 
boon  vested  in  American  citizens.  At  tho  time  of  my 
investigation,  in  tho  summer  of  1803,  I  had  tho  pleasure 
of  a  long  interview  with  tho  owner  of  this  little  island, 
Mr.  Winslow  Bates,  who  was  born  in  the  year  1808,  in 
which  year  Pope's  Folly  was  deeded  to  his  father  by  ono 
Zcbn  Pope.  A  copy  of  this  deed  I  obtained  from  tho 
records  at  Machias,  but  I  was  unable  to  find  any  trace  of 
an  earlier  proprietor  than  Mr.  Pope.  It  was  deeded  to 
Mr.  Bates  under  tho  name  of  "Little  Green  Islarid";  but 
there  is  evidence  that  Popo  had  erected  u[>on  it  a  house  and 
a  wharf,  tho  usclcssncss  of  which  had  suggested  to  his 
neighbors  tho  name  by  which  it  is  now  known.  Bates,  the 
father  of  my  informant,  continued  in  peaceful  possession  of 
tho  inland  until  tho  British  forces  came  into  control  at 
Enstport  ut  tho  close  of  tho  war  of  1812.  In  August, 
1814,  David  Owen,  of  Campobello,  posted  n  placard 
proclamation  in  tho  town  of  Eastport,  announcing  his 
assertion  of  ownership  of  this  island.  It  Avas  hardly 
posted,  however,  before  it  was  torn  down  by  an  indignant 
American  patriot,  probably  Elias  Bates  hitnself,  for  it  is 
now  in  tho  possession  of  Mr.  Winslow  Bates.  It  shows 
tho  holes  made  by  the  tacks  by  which  it  was  originally 
bold  and  is  a  curious  and  valuable  rolic  of  thoso  Iroublu- 
somo  days  in  tho  history  of  Eastport.  'Backed  by  tho 
British  army,  Owen  took  forcible  possession  of  tho  island 
and  removed  tho  buildings  to  Campobello.     Tho  American 


II 


-! 


owner,  Batofl,  procured  n  wri»  for  the  nrrcst  of  Owen, 
claiming  tlamngcs  to  the  exlcn*  of  $2,000.  The  writ 
wn«  never  served,  ns  Owon  was  c«roful  never  to  cotno 
witliin  the  jurisdic  'ion  of  tliu  (;ourt,  after  the  withdrowal 
of  tlio  UriliHli  troops.  After  this  it  wns  in  the  continued 
occupancy  of  Americans ;  Batca  pastured  shcop  on  it,  and 
Canadians  who  had  attempted  to  erect  a  weir  at  the  oast 
end  of  tlio  island  wore  prevented  from  doing  so  by  a 
warning  from  Wlnslow  Bates,  and  did  not  furtiicr  assert 
their  claim.  The  island  was  incorporated  into  the  town 
of  Eastport,  and  when  that  town  was  divided  it  was 
included  in  that  part  known  as  Luboc.  As  long  ago  as 
1823,  the  sovereignty  of  the  island  was  adjudicated  upon 
by  the  American  courts,  on  the  occasion  of  the  confisca- 
tion near  its  shore,  of  "sundry  barrels  of  rum"  by  olort 
Customs  officers.  Judge  Ware  made  an  elalwrato  decision, 
in  which  the  whole  case  was  admirably  presented.' 

His  construction  of  the  Report  of  the  Commission  was 
♦•  that  it  assigns  to  each  party  a  title  according  to  its 
possession,  as  it  was  held  in  1812,"  and  ho  finds  that  the 
island  is  within  tho  domain  of  the  United  States. 

If  further  ovidenco  wero  necessary,  it  could  be  found  in 
tho  early  cartography  of  this  region. 

In  a  map  entitled  "A  Map  of  Campobello  and  other 
Islands  in  the  Province  of  Now  Brunswick,  the  property  of 
Will  Owen,  Esq.,  solo  surviving  grantee,  etc.,  drawn  by 
JoImi  Wilkinson,  Agt.,  to  Wm.  Owen  Esq.,  Campobello, 
30th  September,  1830,"  there  is  drawn  a  broken  straight 
line  extending  from  tho  southern  end  of  Deer  Island  to  tho 
eastern  point  of  LuImjc  Nock,  which  lino  is  designated 
"  Fllium  Aquoo"  which  must  bo  interpreted  as  meaning 
water  lino  or  boundary.  Pope's  Folly  is  on  tho  American 
side  of  this  line.  Moreover,  it  is  an  hislurlcul  fact  that 
English  and  American  vessels  formerly  exchanged  cnrgoes 


1  Wurc'8  Reports,  1823. 


\ 


22 


I 


on  such  u  line,  not  far  from  Eastport,  which  was  assumed 
to  be  the  boundary  line.  A  British  Admiral's  chart  of  that 
region,  dated  1848,  shows  a  dotted  line  intended  to  repre- 
sent the  boundary,  which  runs  to  the  eastward  of  Pope's 
Folly.  Moreover,  the  principal  ship  channel  is  between 
the  island  and  Canipobello. 

In  the  light  of  all  of  this  evidence,  and  more  of  a  similar 
character,  it  seems  unreasonable  to  suppose  that  the  Com- 
mission under  the  treaty  of  1814  ever  intended  this  island 
to  bo  included  in  the  general  declaration  ''all  other  islands 
shall  belong  to  His  Britannic  Majesty."  According  to  all 
recognized  geographical  principles,  to  traditional  ownership 
and  continued  possession,  and  to  early  and  authoritative 
maps  and  charts,  it  is  a  part  of  the  State  of  Maine.  To 
deflect  the  boundary  line  so  as  to  bring  the  island  under 
British  control,  would  distort  it  to  an  unreasonable  degree, 
and  would  result  in  greatly  increased  diflSculty  and  con- 
fusion in  the  administration  of  customs  laws  and  regula- 
tions. Against  all  of  this  the  British  Commission  could 
only  set  up  a  literal  interpretation  of  the  report  of  the 
Commissioners  under  the  treaty  of  Ghent,  to  which  the 
representative  of  the  United  States  felt  compelled  to  refuse 
assent. 

Another  difference  of  opinion,  almost  trivial  in  magnitude 
but  suggestive  in  character,  arose  as  soon  as  the  range- 
marks  defining  the  line  as  agreed  upon  in  Washington  had 
been  actually  located  on  the  ground.  Nearly  opposite  the 
city  of  Eastport  there  is  rather  a  sharp  change  in  the  direc- 
tion of  this  line,  amounting  to  about  57°  25'.  It  was  dis- 
covered that  there  wos  included  in  the  angle  at  this  point, 
on  the  side  towards  the  United  States,  the  better  part  of  a 
shoal  known  as  Cochran's  Ledge,  a  locality  much  fre- 
quented by  fishermen,  and,  indeed,  the  very  spot  on  which 
the  American  fishermen  had  been  arrested  by  the  Canadian 
police  in  1891.  The  result  of  this  discovery  was  that  the 
commissioner  representing  Canadian  interests  declared  his 


28 


unwillingness  to  agree  to  the  line  as  laid  down  at  this 
point,  and  desired  to  introduce  a  new  short  line  cutting 
off  this  angle  so  as  to  throw  the  ledge  into  Canadian 
waters. 

In  some  measure  growing  out  of  this  controversy  was  a 
third,  relating  to  the  line  from  Lubec  Channel  to  the  sea. 
For  about  half  of  this  distance  the  channel  now  and  for 
many  years  in  use  is  a  dredged  channel,  created  and  main- 
tained at  the  expense  of  the  United  States.  Through  this 
it  was  proposed  and  agreed  at  Washington  to  run  the 
boundary  line.  Previous  to  the  making  of  this  there  was 
a  more  or  less  complete  ard  satisfactory  natural  chan- 
nel, through  which  all  vesseh  passed.  It  was  crooked, 
and  was,  for  the  most  pail,  much  nearer  the  Canadian 
shore  than  the  present  channel.  It  has  now  largely  filled 
up  and  disappeared;  the  principal  current  having  been 
diverted  into  the  new  channel.  In  running  the  bound- 
ary line  through  the  latter  a  much  more  even  and,  in 
the  judgment  of  the  American  Commissioner,  a  much 
more  just  division  of  the  water  area  was  secured,  but 
it  was  discovered  to  have  the  locally  serious  disadvantage 
of  throwing  to  the  Canadian  side  certain  fishing  weirs 
which  had  been  maintained  practically  in  the  sanjo  spot  for 
many  years  and  which  were  mostly  owned  and  operated  by 
American  citizens,  resident  in  the  town  of  Lubec.  It  is 
true,  as  suggested  in  an  earlier  part  of  this  paper,  that 
their  continued  occupation  had  been  stoutly  resisted  by  the 
Canadians,  and  serious  conflict  had  once  or  twice  arisen. 
There  was,  of  course,  a  certain  amount  of  reason  in  de- 
manding a  line  following  the  old  channel,  which  undoubtedly 
was  the  only  channel,  when  the  original  treaty  was  made. 
Adherence  to  the  well-founded  principle  of  equal  division 
of  water  areas,  however,  was  thought  to  bo  wiser  and  more 
just  by  the  representative  of  the  United  States,  even  if  it 
required  the  surrender  of  a  few  comparatively  valueless 
fishing-privileges,  the  right  to  which  was  of  very  doubtful 


24 


origin. 


Those  who  thought  they  would  suffer  in  this  way 
made  strong  appeals  to  the  Departnacnt  of  State  and  a 
claim  for  the  old  channel  was  afterwards  embodied  in  the 
propositions  made  by  the  United  States. 

The  differences  between  the  Commissioners  regarding  the 
three  points  above  referred  to  were  the  only  differences  that 
were  at  all  serious,  and  these,  it  is  believed,  might  have 
been  removed  had  they  enjoyed  absolute  freedom  and  full 
power  of  adjustment.     Thus  restricted,  the  Commissioners 
could  not  and  did  not  come  to  an  agreement.     At  their 
meeting  on  December  30th,  1894,  the  American  Commis- 
sioner submitted  three  propositions,  to  any  one  of  which 
ho  was  willing  to  subscribe.     The  first  proposed  the  entire 
line  as  originally  laid  down  in  Washington,  with  an  addi- 
tional section  throwing  Pope's  Folly  Island  into  the  United 
States ;  the  second  suggested  a  literal  interpretation  of  the 
Convention  of  July  22nd,  1892,  restricting  the  marking  to 
three  lines  "  in  front  of  and  adjacent  to  Eastport" ;  tlio  third 
recommended  an  agreement  on  portions  of  the  line,  with 
alternative   propositions  as  to  Pope's  Folly   and  Lubec 
Channel,  to  be  afterwards  determined  by  such. methods  as 
the  two  goveinmoiits  might  agree   upon.     None  of  these 
was  acceptable  to  the  British  Commissioner  and  in  turn  he 
submitted  five  propositions,  none  of  which  was  satisfactory 
to  the  representative  of  the  United  States.      They  all 
involved  non-action  as  to  Pope's  Folly  Island,  but  included 
action  favorable  to  Canadian  interests  below  Lubec. 

At  the  last  meeting,  in  April,  1895,  it  was  finally  agreed 
to  disagree,  and  the  preparation  of  a  joint  report,  setting 
forth  the  principal  lines  of  agreement  and  disagreement 
was  undertaken.  It  was  at  last  resolved,  however,  to 
report  separately,  and  a  full  and  detailed  report  of  all 
operations  was  made  by  the  American  Commissioner  and 
submitted  to  the  Department  of  State. 

What  was  actually  accomplished  by  this  joint  Com- 
mission was  the  laying  out  in  Washington  of  a  rational 


nnnii^iify. 


1  this  way 
ito  and  a 
C(1  in  the 

irding  the 
enccs  that 
ight  have 
1  and  full 
nissioncrs 

At  their 

Coinmis- 

of  which 

tlie  entire 

nn  addi- 
le  United 
on  of  the 
nrking  to 
tlic  third 
lino,  with 
d  Lubec 
cthods  ns 

of  these 
1  turn  he 
lisfactory 
rhey  all 
included 

\ 

y  agreed 
t,  sotting 
^reemcnt 
'ever,  to 
rt  of  all 
oner  and 

it  Corn- 
rational 


5T    ^UOOOY 
Mt*0 


Sketch  Map  of  Passamaquoddy  Bay  showing  proposed  Boundary  with  alternate  lines 

below  and  above  Lubec. 


I 


I  i|iiiWiCiiL'Bilift.'JU'i.""""<" 


25 

boundary  line,  extending  over  the  entire  twenty  miles  of 
undetermined  boundary,  and  the  actual  erection  on  the 
ground  of  range-signals  and  monuments  indicating  this  Ime. 
These  still  remain  and,  as  a  matter  of  fact,  are  quite  gen- 
erally accepted  as  authoritative  in  the  immediate  vicinity, 
thus  making  it  every  day  easier  for  a  future  convention  to 
fix  definitely  the  direction  of  the  boundary  and  thus  quiet  a 
dispute  which  has  already  continued  a  century  longer  than 
was  necessary. 


